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2021
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[2021] ZAGPJHC 132
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Body Action Health Clubs (Pty) Ltd v Blue Crest Holdings (Pty) Ltd (2020/39156) [2021] ZAGPJHC 132 (1 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 2020/39156
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
BODY
ACTION HEALTH CLUBS (PTY) LTD
Applicant
and
BLUE
CREST HOLDINGS (PTY)
LTD
Respondent
In
re:
BLUE
CREST HOLDINGS (PTY)
LTD
Applicant
and
BODY
ACTION HEALTH CLUBS (PTY)
LTD
Respondent
JUDGMENT
McLEAN
AJ:
Introduction
1.
This is a judgment in an application for
leave to appeal.
2.
On 14 December 2020, I granted an eviction
order in favour of the Respondent, ordering the Applicant to vacate
the leased premises
owned by the Respondent, by no later than 31
December 2020. I shall refer to this as “
the
Eviction Order
”.
3.
On 28 December 2020, the Applicant filed a
Notice of Application for Leave to Appeal, which automatically had
the effect of suspending
the Eviction Order in terms of section 18(1)
of the Superior Courts Act 10 of 2013 (“
the
Superior Courts Act
&rdquo
;).
4.
The Application for leave to appeal was
heard on 27 January 2021.
The Mootness of the
Appeal
5.
Counsel for the Respondent urged me to
dismiss the application on the basis of
section 17(1)(b)
read with
section 16(2)(a)
of the
Superior Courts Act.
6.
Section
17(1) of the
Superior Courts Act
provides
that leave to appeal may only be granted where the three
conditions set out in sub-sections (a), (b) and (c) are met.
Sub-section
(b) lists one of those conditions as being where “
the
decision sought on appeal does not fall within the ambit of
section
16(2)(a)
”.
7.
Section 16(2)(a)
provides that: “
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.
”
8.
The Respondent contended that it is common
cause that the Applicant would have vacated the premises by 1 May
2021, as it has undertaken
to do so, and that for this reason, by the
time any appeal is heard, the Respondent would have left the premises
and that the matter
would have no practice effect or result.
9.
The Applicant, however, pointed to Rule
49(18) of the Uniform Rules, which provides that an urgent appeal may
be convened on the
direction of the Judge President.
10.
It is not apparent to me, therefore, that
an appeal could not be heard prior to 1 May 2021, and it would be
open to either party
to approach the Judge President to seek an
urgent appeal in these circumstances.
11.
I am therefore not convinced that the
decision sought on appeal falls within the ambit of section 16(2)(a)
as the decision sought
on appeal may yet have a practical effect or
result. Given the view that I take on the merits of an appeal, I do
not refuse the
Application for Leave to Appeal on the basis of
section 17(1)
of the
Superior Courts Act.
Leave
to Appeal
12.
In granting the Eviction Order, I relied
upon the express terms of the written lease agreement, which provided
that the lease expired
on 31 October 2020. Given that the lease had
expired, the Applicant could show no right to remain in occupation,
and the Respondent
(then the Applicant) was entitled to the relief
sought in its Notice of Motion.
13.
In opposing the relief sought,
the
Applicant contended that the written terms of the lease agreement
were not exhaustive of the terms of the lease agreement, and
that it
was the parties’ intention for the lease to run for a period of
at least
14 months, and that the Applicant would be
entitled to remain in occupation until the alternative premises it
was building
were completed. In this respect (and in other respects),
the Applicant assets that the lease agreement was partly written,
partly
oral.
14.
In the Eviction Order, I found that it was
not open to the Applicant
to rely on an alleged oral or tacit
term on the lease agreement, as it is precluded from doing so in
terms of the parol evidence
rule. In this regard, I relied on
Johnston v Leal
1980 (3) SA 927
(A) at 942I – 943G.
15.
In the Heads of Argument filed in the
Application for Leave to Appeal, counsel for the Applicant referred
me to clause 41 of the
lease agreement which provides that:
“
This
agreement shall only become binding on the Lessor as and when it is
actually signed by the Lessor, until which time the Lessee
shall have
no claim to the existence of a tenancy, either verbal or written, by
reason of negotiations having been conducted or
concluded in regard
thereto or by reason of the agreement having been drafted and signed
by the Lessee only.
”
16.
Neither party referred to clause 41 in the
earlier hearing, and the matter is not raised in the papers.
17.
It is common cause that the Lessor (the
Respondent) did not sign the lease agreement, but that it was signed
by the Lessee (the
Applicant).
18.
Counsel for the Applicant contended,
correctly so, that the parol evidence rule only applies to integrated
contracts, and that an
Appeal Court may well find that, given that
the Lessor did not sign the lease agreement, the effect of clause 41
was that the agreement
was inchoate, and that the parol evidence rule
did not apply.
19.
Counsel for the Respondent contended that
clause 41 was solely for the benefit of the Respondent, and that the
Respondent had clearly
waived the clause. I have some doubt that
it would be open to the Respondent to waive clause 41, but even if it
could, this
is not a matter that has been pleaded on the papers
before me.
20.
In these circumstances, I am persuaded that
there is a reasonable prospect that an Appeal Court, in considering
clause 41 of the
lease agreement, may find that the parol evidence
rule does not apply. In this event, the evidence put up by the
Applicant on the
terms of the partly written partly oral agreement
must be considered by the Appeal Court, and that Court may come to a
different
conclusion to the one reached by me in granting the
Eviction Order. Accordingly, the appeal would have a reasonable
prospect of
success.
21.
I am therefore persuaded that an Appeal
Court may come to a different conclusion and that leave to appeal
should be granted.
Order
22.
The following order is made:
22.1.
Application for leave to appeal to the Full Bench is granted.
22.2.
Costs of the application for leave to appeal will be costs in the
cause.
KS MCLEAN, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION JOHANNESBURG
Date Argued: 27 January
2021
Date of Judgment: 1
February 2021
For the Applicants: Adv N
Stein
Attorneys: Tatham Wilkes
Inc
For the Respondent: Adv
EJ Ferreira
Attorneys: Texeira Du
Toit Attorneys